Legal Tales | Power of Hong Kong’s new national security regulation must be exercised prudently

The recent enactment of the Safeguarding National Security (Procedural Matters) Regulation has generated significant interest and commentary on Hong Kong’s legal landscape.
It is recognised that maintaining national security is of paramount importance and that there is a constitutional responsibility on the Hong Kong Special Administrative Region to do so.
Under the Basic Law, that responsibility falls to a large extent on the city’s chief executive. It is also recognised in many common law jurisdictions that certain matters of national security or foreign relations fall within the expertise and purview of the executive branch. This is because, owing to urgency or secrecy, it is not usually practical for the exercise of such powers to be litigated and decided by the courts.
What has been done is to enact subsidiary local legislation, as permitted by the principal legislation. The regulation seeks to clarify the scope of section 7(d) of the Safeguarding National Security Ordinance (SNSO).
Much attention has focused on section 1(2)(a) of the regulation, which provides that, on the issuance of a certificate by the chief executive, “the case is a case mentioned in Article 41 of the Hong Kong National Security Law, regardless of whether the act was done or the prosecution was brought before, at the time or after the Hong Kong National Security Law came into operation”.
It is appreciated that no substantive criminal offences are being introduced by the regulation, retrospectively or otherwise. However, since the above provision has the effect of applying the SNSO’s procedural mechanism to offences committed before the regulation’s introduction, it is understandable that many in society regard the regulation’s effect as a significant matter to be taken into account when deciding whether to exercise the new powers conferred.
The chief executive has rightly recognised that these new powers are to be exercised “seriously” and with “prudence”. This is an appropriate approach, given that the issuance of a certificate would affect the procedures for investigation, arrest, bail and the mode of trial in a case concerning an alleged offence committed before the subsidiary legislation came into effect.
It is hoped and believed that this power will be exercised in a manner consistent with fundamental human rights, including freedom of expression and of reporting, which are constitutionally entrenched and protected under the Basic Law.

At the opening of the legal year in January, I mentioned that the existence of rights and the perception of those rights are inextricably intertwined. Perception is not something that stands outside reality; it changes reality itself. Maintaining this perception of rights is in the interests of both Hong Kong’s economy and its standing in the world, and is also important in preserving the way of life of its people.
Ultimately, striking the proper balance between security and freedoms, encouraging the rational expression of opinions, and fostering responsible and professional news reporting together constitute a compelling source of soft power for Hong Kong.
To the extent possible, and without compromising national security, it would help maintain and promote confidence in Hong Kong’s legal process if, in those rare cases where a certificate is issued under the regulation, the reasons for its issuance are explained as fully as practicable.
This would help prevent misunderstanding and allow the wider community to appreciate why the exercise of such power is in the interests of the community and necessary for the maintenance of national security.
Jose-Antonio Maurellet SC is the current chairman of the Hong Kong Bar Association and a commercial litigator.
Legal Tales is a weekly online column by senior members of the Hong Kong Bar Association presenting their perspectives on current affairs.